Dart v JC Decaux Australia Pty Ltd
[2021] VCC 741
•10 June 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-20-05130
| JAYDEN DART | Plaintiff |
| v | |
| JC DECAUX AUSTRALIA PTY LTD | Defendant |
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JUDGE: | HER HONOUR JUDGE TSALAMANDRIS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 14 May 2021 | |
DATE OF JUDGMENT: | 10 June 2021 | |
CASE MAY BE CITED AS: | Dart v JC Decaux Australia Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 741 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury application – injury to lumbar spine – loss of earning capacity – plaintiff under 26 years of age
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013
Cases Cited:State of New South Wales v Moss [2000] NSWCA 133; Jarvis v Woolworths [2012] VCC 1329; Spiteri v Victorian WorkCover Authority [2016] VCC 912; Sharma v Chandler Personnel Services [2018] VCC 1658; Capper v Munday Sales Pty Ltd & Anor [2013] VCC 1015; Sanderson v Woolworths Limited [2019] VCC 106; Moslimyar v Victorian WorkCover Authority [2020] VCC 444
Judgment: Leave granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Mighell QC with Mr O’Brien | S & V Lawyers |
| For the Defendant | Mr B McKenzie | Hall and Wilcox |
HER HONOUR:
1On 23 November 2018, when he was 25 years of age, Mr Dart suffered an injury to his lower back while cleaning a bus shelter with a high-pressure broom, during the course of his employment at JC Decaux Australia Pty Ltd (“the employer”). In this incident, Mr Dart suffered a moderately prominent central posterior protrusion at the L4-5 and L5-S1 intervertebral disc, for which he required surgery. Mr Dart claims that since that time, he has suffered persisting back pain that prevents him from working.
2This is an application for leave to bring common law proceedings pursuant to s335 of the Workplace Injury Rehabilitation and Compensation Act 2013 (“the Act”). At the commencement of the hearing, the defendant accepted Mr Dart suffers a serious injury in respect of his pain and suffering consequences. Therefore, I need only determine if Mr Dart suffers loss of earning capacity consequences to the requisite level prescribed by s325 of the Act. The onus is on Mr Dart to satisfy me that:
(a) he has sustained a loss of earning capacity of 40 per cent or more; and
(b) he will, after the date of the decision, continue permanently to have a loss of earning capacity which produces a financial loss of 40 per cent or more.[1]
[1] Section 325 (e) of the Act
3Only Mr Dart was called to give evidence. Also in evidence were medical reports, vocational reports and other material. I have read these tendered documents, together with the transcript of the proceeding. I shall not refer to all of that material in the course of this judgment, but rather to those parts of the evidence which I consider necessary to give context to, and explain, the conclusions reached in this judgment.
Mr Dart’s life before the work injury
4Mr Dart attended secondary school until almost the end of Year 10. He said that he was a very poor student and his ability to read and write remains at only a very basic level. Mr Dart said that upon leaving school, he commenced working as a labourer for his brother, who is a bricklayer.
5Mr Dart said that as a teenager he got into trouble with police and spent a year and a half in youth detention. He said that whilst in detention he undertook some basic courses at Malmsbury Youth Justice Centre.
6Prior to commencing with the employer, Mr Dart worked in numerous jobs, including as a scaffolder and in traffic management. Mr Dart said he had never worked in an office and had only ever done labouring-type work.
7In early 2017, Mr Dart suffered back pain whilst lifting a couch at home. At the time he attended his general practitioner and was treated with an injection into his spine and also had physiotherapy. Mr Dart said that his back pain improved after some months and he did not have any ongoing problems with it.
Mr Dart’s work injury and his claimed consequences
8In June 2018, Mr Dart commenced employment with the employer as a maintenance technician. In this role, Mr Dart said that he was required to drive to various bus shelters and clean them. On 23 November 2018, Mr Dart said that whilst on a ladder, using a high-pressure broom, he twisted awkwardly and experienced a sudden onset of significant pain in his lumbar spine.
9Mr Dart said that he immediately reported the incident to his supervisor and he was subsequently sent home. Mr Dart said he has not returned to any form of employment since that time.
10Mr Dart completed a worker’s injury claim form in respect of this incident, which he said was filled out by someone who worked for his employer, based on the information he provided to them. The claim form stated that Mr Dart had not previously suffered any related injury. When he was cross-examined about this, Mr Dart said that as he had previously recovered from back pain suffered when moving the couch, it did not cross his mind to refer to that injury in his claim form.
11Following the work incident, Mr Dart consulted his general practitioner, Dr Ariane D’Argent, who prescribed him analgesics and referred him for an x-ray and MRI scan.
12On 27 November 2018, an MRI scan was performed on Mr Dart’s lumbar spine. It demonstrated an L4-5 disc protrusion with severe compression of the left L5 nerve root. Mr Dart was initially referred for multidisciplinary pain management treatment at Advanced Healthcare in Dandenong. However, due to lack of improvement in his condition, in February 2019 Mr Dart was subsequently referred to spinal orthopaedic surgeon, Mr John Choi.
13On 12 February 2019, Mr Choi arranged for a left L5 nerve root injection and also repeat MRI scan which showed an L4-5 disc extrusion.
14On 22 February 2019, Mr Choi performed an L4-5 microdiscectomy and left L5 nerve root release. Mr Dart said that he gained only a limited amount of pain relief in his legs following this surgery and continued to experience significant pain and restrictions in his lumbar spine.
15Mr Dart said that he struggled with ongoing pain and his inability to work. On 21 April 2019, Mr Dart attempted suicide by cutting his throat. He was subsequently taken to Maroondah Hospital for repair of the laceration. Mr Dart said that he has continued to experience suicidal thoughts since this time.
16Mr Dart said that Mr Choi subsequently recommended a spinal fusion, but the statutory insurer refused to pay for this surgery, and Mr Dart said he had not taken steps to have this done outside of the WorkCover system.
17In a report dated 30 July 2020, Dr D’Argent stated that in her opinion Mr Dart’s prognosis was very poor due to his poor response from the microdiscectomy and also due to a development of major depression secondary to his physical injury. At that time, Dr D’Argent stated that she doubted Mr Dart “would ever gain any meaningful future capacity for physical work”. Further, Dr D’Argent considered that Mr Dart’s ability to retrain for non-manual work was of concern, given that he had only gone to Year 10 at school.
18In a report dated 17 September 2020, Mr Choi stated that he considered Mr Dart was physically incapable of returning to his previous duties as an advertising board cleaner, but that he may be able to perform some other, less physically demanding or sedentary forms of employment, with appropriate limitations. Such limitations included not standing for more than 30 minutes, not lifting more than 20 kilograms, and not performing any activity which involved repetitive twisting and turning of the lumbar spine. Mr Choi stated that he recommended to Mr Dart that he look for a less physical job consistent with such restrictions. When this aspect of his report was put to Mr Dart in cross-examination, he said that Mr Choi did not discuss such matters with him, save that he recalled Mr Choi told him he should avoid bending, lifting, and other activities which may aggravate his injury.
19In 19 October 2020, a further MRI scan was performed on Mr Dart’s lumbar spine. The radiologist reported the MRI scan as demonstrating post-operative changes at L4-5, with asymmetric disc bulge with minor left lateral recess narrowing. Dr D’Argent considered that this scan showed an L4-5 disc bulge with displacement of the traversing left L5 nerve root. Mr Choi considered that it demonstrated ongoing L4-5 and L5-S1 disc height loss, modic changes, disc signal loss and evidence of post-operative scarring at L4-5, with further disc bulging and compression of the nerve roots.
20On 20 January 2021, Mr Dart was re-examined by Mr Choi. At that time, Mr Choi noted that on examination Mr Dart continued to have irritation down his left leg in the L5-S1 distribution in both sensation and on provocation manoeuvres, along with positive sciatic stress test and straight leg raise which was positive at 50 degrees of elevation. Mr Choi again recommended that Mr Dart undergo fusion surgery.
21In a report dated 20 January 2021, Mr Choi stated that he considered Mr Dart’s prognosis to be very guarded. Mr Choi considered that Mr Dart did not have any ability to perform any suitable employment due to his complex pain management regime, as well as his physical limitations in performing such duties. Mr Choi stated that unless his problem at L4-5 and L5-S1 was adequately treated, Mr Dart was probably not amenable to any form of paid employment which would require concentration, mental capacity and analytical performance.
22Considering his prior training and education level, Mr Choi considered it would be difficult for Mr Dart to perform any paid employment. However, in the event his back was “fixed”, Mr Choi considered that Mr Dart would be able to return to some form of paid employment, but that it would take approximately nine months of post-surgery rehabilitation for Mr Dart to be capable of performing the vocational demands of such employment. In those circumstances, Mr Choi considered that he would expect Mr Dart to be capable of working six to eight hours a day, three days a week and, depending upon the nature of the work, he may be able to increase to three to five days per week. However, Mr Choi considered that Mr Dart was currently permanently disabled and was unable to perform any occupational work due to his pain, as well as his levels of anxiety and psychological problems.
23In early 2021, Mr Dart was referred to sports and exercise medicine physician, Dr Dan Bates. Dr Bates considered that Mr Dart suffered ongoing neuropathic pain due to an L5 nerve root compression which was not responsive to the microdiscectomy and noted that Mr Dart was “not for fusion”. Dr Bates recommended Mr Dart undergo treatment with neuromodulation (spinal cord stimulator) and he requested payment of this procedure from the statutory insurer. Also at that time Dr Bates said that he would refer Mr Dart to pain psychologist, Mr David Young, to assess his preparedness for this procedure. However, Mr Dart denied that he was referred to a psychologist at this time.
24Approximately two months after this request was made, the statutory insurer agreed to pay for the cost of the spinal cord stimulator. However, Mr Dart said by the time it was approved, he had decided he no longer wished to proceed with it. Mr Dart said he was concerned about having “wires and a battery” in his spine for the rest of his life, was worried the battery might “explode” and understood it involved going “under the knife” every three years to have the batteries replaced. Mr Dart denied he would undergo the procedure when his litigation was concluded.
25In a report dated 1 February 2021, Dr D’Argent stated that Mr Dart did not have any capacity for suitable employment and therefore she continued to certify Mr Dart unfit for any duties. It was noted that Mr Dart continued to experience very high pain levels and suffered frequent severe flare-ups of pain with multiple emergency department admissions. Dr D’Argent noted that Mr Dart had specific limitations in terms of his sitting, standing, walking and lifting capacity, which made his ability to perform consistent work extremely difficult. Dr D’Argent considered that Mr Dart’s prognosis continued to be poor without significant change from either lumbar fusion surgery or a spinal cord stimulator.
26In this report, Dr D’Argent expressly stated that she considered Mr Dart was not capable of performing the jobs of administrative assistant, data entry operator or customer service representative, as all such jobs require long periods of sitting, which was outside Mr Dart’s capacity. Further, Dr D’Argent considered that the jobs did not appear appropriate given Mr Dart’s lack of transferable skills. Dr D’Argent stated that a change in Mr Dart’s work capacity could only eventuate if he underwent fusion surgery or has a spinal cord stimulator implanted.
27From time to time, Mr Dart has attended Dandenong Hospital’s Emergency Department in respect of severe episodes of back pain. Mr Dart said that in late 2020, he had difficulties urinating, for which he temporarily required a catheter.
28Mr Dart says that he continues to suffer from low back pain and left leg pain, and that he has recently begun to experience right leg pain. He said that the back pain is always with him and that he is never free of pain or symptoms. Mr Dart said that his pain is made worse by sitting, bending, twisting and lifting. Mr Dart said that during the course of the day he tries to lie down for a couple of hours to help ease his pain.
29Mr Dart currently takes Norspan, Duloxetine, Gabapentin and Celebrex medication.
30Mr Dart says that he has not applied for any jobs or undertaken any training, as he does not feel he is up to it due to his pain.
31Mr Dart lives with his partner and two children, who are aged 2 years and 12 months old. Mr Dart said that he is restricted in his ability to care for his children.
Vocational Assessment Reports
32The defendant relied upon two vocational assessment reports it had obtained in this matter, and certain jobs identified in those reports, which the defendant claims are suitable for Mr Dart to perform.
(1) Nabenet report
33In August 2020, Mr Dart was referred by the statutory insurer to Nabenet for a vocational assessment. In a report dated 10 September 2020, it was noted that a case conference was held on 27 August 2020, with Mr Dart, Dr D’Argent and Nabenet. At that meeting, suitable employment options were discussed and Dr D’Argent was noted to be supportive of Mr Dart having a capacity to perform sedentary computer-based roles, such as working in IT or administration. It was further noted that Dr D’Argent considered that factory and warehouse roles would not be suitable for Mr Dart, as such work was likely to involve a manual component.
34When this extract of the Nabenet report was put to Mr Dart in cross-examination, he said that he had been the one to ask for this meeting as he was keen to return to work. However, Mr Dart said that his back pain just got worse and worse, and that within a short period of time, he returned to see Dr D’Argent who agreed that he was unable to perform any work.
35As part of this Nabenet assessment, Mr Dart stated that he had basic to intermediate computer skills, which included internet navigation, email functions and the basic use of Word and Excel, including copying, saving and pasting of documents. However, in cross-examination Mr Dart said that he does not send emails but rather his partner does, and that he had only done copying and pasting of documents when he was at school.
36Nabenet noted that Mr Dart was keen to work in information technology. In cross-examination Mr Dart conceded that he it was something he thought about, however he considered that his back pain was too much to enable him to undertake training in this field.
37Nabenet concluded numerous jobs would constitute suitable employment for Mr Dart, including:
· administrative assistant;
· data entry operator;
· customer service representative.
(2) CoWork report
38In October 2020, the defendant arranged for Mr Dart to be interviewed by vocational assessors, CoWork. In a report dated 30 October 2020, it was noted that Mr Dart had completed Year 10 at Blackburn High School and he then completed Years 11 and 12 in the VCAL program at Parkville College. When this was put to Mr Dart in cross-examination he said that was incorrect. He said he did some basic courses at Malmsbury whilst in youth detention, but he had not completed Years 11 or 12.
39CoWork concluded numerous jobs would constitute suitable employment for Mr Dart, including:
· spare parts interpreter;
· weighbridge operator;
· fleet controller (assistant/supervisor).
40In relation to the educational training to be a weighbridge operator, it was stated that such a person would need to have a working knowledge of computers and maths skills. In re-examination, Mr Dart said that he considered his maths skills were poor.
Mr Dart’s medico-legal evidence
41In November 2019, Mr Dart was jointly examined by neurosurgeon, Dr Armin Drnda, and pain specialist, Dr Terence Lim. In a report dated 15 November 2019, it was noted that Mr Dart described his back pain severity as 7/10 and his leg pain severity as 4/10. It was noted at that time that his back pain reduced his sitting and standing tolerance to about 20 minutes. In this joint report it was stated that Dr Drnda and Dr Lim considered Mr Dart was suffering chronic pain resulting in a significant physical disability which he was having difficulty coming to terms with. It was recommended that Mr Dart would benefit from chronic pain management, as well as a vocational assessment.
42On 7 October 2020, Mr Dart was referred to pain specialist, Dr Vishal Bhasin. In his report dated 7 October 2020, Dr Bhasin diagnosed Mr Dart as suffering:
· failed back surgery syndrome;
· evidence of bilateral adjacent segment disease including bilateral lumbar facet pain, particularly at L4-L5 and L5-S1 area and associated sacroiliac joint pain bilaterally;
· ongoing left L5 radiculopathy and possible left L4 radiculopathy; associated with L4 and L5 sensory changes and ongoing left leg weakness in the L4 myotome; and
· comorbid depression with past history of suicidality.
43Dr Bhasin was of the opinion that Mr Dart was likely to require ongoing treatment with medication, diagnostic injections and potential radiofrequency treatments. Dr Bhasin also considered that spinal cord stimulation may be another appropriate form of treatment.
44Dr Bhasin considered that as Mr Dart reported a sitting tolerance of 20 minutes and standing tolerance of 20 minutes, he had no current capacity for significant work in the context of his current presentation. Further, Dr Bhasin noted that Mr Dart’s education level may be a further impediment to his retraining.
45In a further report dated 21 January 2021, Dr Bhasin confirmed his previous diagnosis of failed back surgery syndrome with chronic depression and evidence of L5 radiculopathy. Dr Bhasin stated that given Mr Dart’s markedly reduced sitting, standing and concentration tolerances, he was of the opinion that a return to work for Mr Dart was not currently tenable. He stated that Mr Dart may have brief tolerances where he could work, lasting up to 15 minutes at a time, but that would not translate to anything practical in his opinion.
46At the time of this examination, Dr Bhasin noted that Mr Dart’s standing tolerance was 10 to 15 minutes. When this was put to Mr Dart in cross-examination, he said that his tolerances varied depending on his pain levels.
47Dr Bhasin was asked to comment on jobs identified in the Nabenet report. Dr Bhasin considered that due to his poor sitting tolerance, the roles of administrative assistant, data entry operator, and customer service representative were untenable, as Dr Bhasin accepted that sitting was a known trigger for Mr Dart’s pain flare-ups.
48Dr Bhasin considered that Mr Dart’s prognosis was poor given the chronicity and comorbid psychology. He considered that a return to work was unlikely in the context of his current medical presentation.
49I note that Dr Bhasin was not expressly asked to comment on the jobs of weighbridge operator or fleet controller, as detailed in the CoWork report. However, given the sitting and standing requirements of those roles, I consider it likely that Mr Bhasin would also have considered those positions to be unsuitable for Mr Dart.
50In November 2020, Mr Dart was examined by rehabilitation and pain medicine specialist, Dr Clayton Thomas. In a report dated 17 November 2020, Dr Thomas detailed Mr Dart’s history and the treatment he had received for his back injury. He noted that at the time of the examination, he was not provided with any diagnostic investigations and instead referred to the medical imaging reports, the most recent one being that taken on 13 February 2019.
51At the time of the examination, Dr Thomas noted that Mr Dart reported that his walking and sitting tolerances were at about 20 minutes. On examination, Dr Thomas considered that Mr Dart’s lumbosacral movements were observed to be better on indirect observation. He noted that Mr Dart reported sensory loss over the L5 dermatome on the left and he had one-fifth power of the left big toe. Dr Thomas did not consider there was any obvious wasting of either calf.
52Dr Thomas considered that Mr Dart was not able to return to his pre-injury work duties or hours. However, he considered that Mr Dart could perform modified work duties and hours provided that he was employed in “reasonably back-friendly work duties”. Dr Thomas stated that Mr Dart would need to avoid repetitive bending, lifting and twisting below his waist height or above chest height. Dr Thomas considered Mr Dart could perform occasional lifting below waist height up to 5 kilograms and above chest height if the object lifted was small, contained and could be lifted in an appropriate manner. Dr Thomas considered that Mr Dart had the capacity for suitable employment and that his impression was that his presentation was one of over-embellishment. Dr Thomas stated there were non-organic components present which were not psychologically-based. Therefore, from a physical perspective, Dr Thomas considered that the jobs recommended in the Nabenet report were appropriate.
53In a supplementary report dated 2 May 2021, Dr Thomas was asked to comment on the suitability of the jobs identified in the CoWork report. Dr Thomas stated that, in his opinion, the roles of customer service officer, weighbridge operator and fleet control supervisor were all appropriate for Mr Dart.
54In March 2021, Mr Dart was examined by occupational physician, Dr James Rowe. In his report dated 2 March 2021, Dr Rowe detailed Mr Dart’s history, the treatment he received for his work injury and investigations performed. On examination Dr Rowe noted a limited range of movement in Mr Dart’s lumbar spine and that flexion, extension and lateral rotation flexion to the left side were restricted and painful. It was also noted there was wasting of his left calf, with a 3-centimetre difference in size. Further, Dr Rowe noted weakness of movement in his left foot and ankle and impaired sensation of the big toe and lateral toes of the left foot. Dr Rowe diagnosed Mr Dart as suffering an “aggravation of L4/5 and L5/S2 (sic)” distribution of compromise of the L5 nerve root, particularly on the left side. Dr Rowe considered that Mr Dart was now suffering chronic lower back pain with left leg radiculopathy secondary to failed back surgery in 2019. Dr Rowe considered that Mr Dart’s prognosis was poor.
55Dr Rowe stated that, as a result of his injuries, Mr Dart now has restrictions on activities involving:
· bending and twisting
· lifting and carrying
· overhead use of his arms
· pushing and pulling
· stooping and crouching
· squatting
· working on ladders and platforms
· negotiating stairs and steps
· carrying or using heavy handheld equipment.
56Dr Rowe stated that whether or not these restrictions would be permanent would depend on whether Mr Dart underwent further treatment and that, therefore, he should be re-assessed in 12 months’ time. In particular, Dr Rowe considered that fusion surgery and spinal cord stimulator were reasonable and appropriate treatment options which may improve Mr Dart’s future capacity for employment. However, as at the time of the examination, Dr Rowe considered that Mr Dart was not able to perform the positions of administrative assistant, data entry operator or customer service representative, as each position involves prolonged sitting or standing, bending, twisting and other physical movements that are outside of Mr Dart’s capacity.
Mr Dart’s reliability and credibility
57The defendant submitted that I should have reservations as to Mr Dart’s evidence for the following reasons:
(i) Mr Dart gave inconsistent evidence as to when he finished school. The defendant noted that in Mr Dart’s first affidavit he said had completed Year 10, whereas in his second affidavit Mr Dart stated that he did not complete Year 10. When asked to explain this discrepancy in cross-examination, Mr Dart said that he left school towards the end of Year 10, but did not actually complete the year. I accepted his explanation for this as reasonable, and such a trivial discrepancy has no bearing upon my assessment of Mr Dart’s reliability or credibility.
(ii) Mr Dart’s failure to disclose his prior lower back injury in his initial claim form, his first affidavit and in the history provided to several doctors. However, in this regard I accept Mr Dart’s explanation that he considered he had made a full recovery from his prior episode of back pain. Therefore, he did not think to mention it when completing his initial claim form, swearing his affidavit or speaking to medical practitioners about his lower back injury, the subject of this claim, which was of much greater significance and with ongoing consequence.
(iii) Mr Dart gave varying accounts as to his sitting and standing tolerances. Dr Thomas, Dr Rowe and Nabenet noted that Mr Dart reported a sitting and standing tolerances of 20 minutes, whereas when Mr Dart attended Dr Bhasin in January 2021, his tolerance was reported as between 10 to 15 minutes. However, I accept Mr Dart’s evidence that his tolerances vary depending on his pain levels. I therefore considered this an understandable discrepancy, and do not consider any variation in his reported tolerances to reflect upon Mr Dart’s reliability or credibility.
(iv) Dr Thomas considered that Mr Dart was embellishing his symptoms. However, it would appear that, from his examination of Mr Dart, Dr Thomas did not note any objective signs in his leg, with no muscle wasting recorded, whereas Dr Rowe reported this on his examination. I further note that Dr Thomas did not see the most recent MRI scan, and he was not aware of Dr Bate’s recommendation that Mr Dart undergo a spinal cord stimulator. In the absence of this additional and more current information, I consider Dr Thomas’ opinion is of minimal assistance. Dr Thomas’ opinion that Mr Dart was embellishing his symptoms is insufficient to persuade me that Mr Dart is an unreliable witness.
58Overall, I considered Mr Dart to be a genuine and reliable witness, and I accept his evidence without reservation.
Mr Dart’s claim for loss of earning capacity
59To succeed in his claim for loss of earning capacity, pursuant to ss325(e)(i) of the Act, Mr Dart must establish that he has a loss of earning capacity at the date of the hearing of 40 per cent or more. Further, he must establish, pursuant to ss325(e)(ii) of the Act, that he will, after the date of the hearing, continue to have a permanent loss of earning capacity which will be productive of a financial loss of 40 per cent or more.
60As Mr Dart was under 26 years of age at the time he suffered his lower back injury, the assessment of his 40 per cent loss is not to be referenced to his income from personal exertion in the three years before and three years after the injury (as it would be if he was over 26 years of age.[2]) Instead, the assessment is to be made by reference to common law principles. That is, the court may “have regard to the probable income from personal exertion which the worker would have earned but for the injury over the worker’s probable earning life.”[3]
[2] Section 325(2)(f) WIRC Act
[3]Second Reading Speech on the Accident Compensation (Common and Benefits) Bill, in the Legislative Assembly on 13 April 2000, The Honourable R Cameron, Minister for WorkCover, at 1003
61As to the common law principles which should guide me in the assessment of Mr Dart’s loss of future earning capacity, both parties referred me to the New South Wales Court of Appeal decision in State of New South Wales v Moss.[4]That case involved the assessment of loss of earning capacity of a plaintiff injured in a science experiment at school, when she was 14 years of age. Heydon JA (as he then was) identified the following principles:
(i) the plaintiff’s individual circumstances, such as background, intelligence, drive and personality may be relevant;[5]
(ii) evidence of past economic loss is some, though not conclusive, evidence of reduced earning capacity;[6]
(iii) it is generally desirable to have precise evidence of what the plaintiff would have been likely to earn before the injury and what [the plaintiff] is likely to earn after the injury;[7]
(iv) the compensable loss is not a loss of income but the loss of capacity to earn income in a manner productive of financial loss. It does not depend on calculating the income from a particular career which is no longer possible, but in calculating the damage to a capacity to carry on various careers. It is an exercise in the estimation of possibilities, not proof of probabilities;[8]
(v) the task of the [court] is to form a discretionary judgment by reference to not wholly determinate criteria within fairly wide parameters.[9]
[4] [2000] NSWCA 133
[5] (ibid) at [62]
[6] (ibid) at [64]
[7] (ibid) at [66]
[8] (ibid) at [71]
[9] (ibid) at [87]
62The defendant submitted that before I come to assess Mr Dart’s loss of earning capacity under this sub-section, I must be satisfied that Mr Dart’s injury is permanent and that he has complied with s325(g) of Act. This section states that:
“a worker does not establish the loss of earning capacity required by paragraph (b) if the worker, taking into account the worker's capacity for suitable employment after the injury and, where applicable, the reasonableness of the worker's attempts to participate in rehabilitation or retraining—
(i) has; or
(ii) after rehabilitation or retraining, would have—
A capacity for any employment, including alternative employment or further or additional employment which, if exercised, would result in the worker earning more than 60 per cent of gross income from personal exertion as determined in accordance with paragraph (f) had the injury not occurred.”
63The parties agreed that the test of reasonableness in this sub-section is a subjective one.
64The defendant urged me to find that Mr Dart’s refusal to undergo spinal cord stimulator surgery was unreasonable, such that he does not satisfy the requirement of permanence, and he has not satisfied his obligation to engage in appropriate rehabilitation, as required by this sub-section. Further, the defendant submitted that I should find that Mr Dart’s failure to undergo a computer course is evidence of his unreasonableness in attempts to participate in retraining
65However, Mr Mighell submitted that that sub-section does not apply in circumstances where Mr Dart was under the age of 26 at the time he suffered his work injury. In assessing his claim under s325(e)(i), I need not have consideration as to what he is capable of earning in suitable employment, and therefore the obligation in s325(g) did not apply.
66There are numerous judgments of this Court which consider whether the obligations contained in s325(g) apply to a worker under the age of 26. Some judges have held that it does,[10] others have held that it does not.[11] It is unnecessary for me to determine this, as I am satisfied that, on a subjective basis, Mr Dart’s refusal to undergo the proposed spinal cord stimulator surgery is reasonable, and that it is also reasonable that he has not undergone a computer course.
[10]Jarvis v Woolworths [2012] VCC 1329; Spiteri v Victorian WorkCover Authority [2016] VCC 912; Sharma v Chandler Personnel Services [2018] VCC 1658
[11]Capper v Munday Sales Pty Ltd & Anor [2013] VCC 1015; Sanderson v Woolworths Limited [2019] VCC 106; Moslimyar v Victorian WorkCover Authority [2020] VCC 444
67In respect of Mr Dart’s decision not to proceed with the recommended spinal cord stimulator surgery, I am satisfied that his concern was genuine. I considered his reason for not proceeding, despite the recommendation of several doctors and his initial interest in the procedure, was plausible and understandable.
68In respect of Mr Dart’s failure to undertake a computer course, I accept his evidence that he has not felt capable of undertaking study due to his pain levels. Therefore, should he be subject to the provisions in s325(g), I am satisfied that Mr Dart has not been unreasonable for not undertaking such retraining.
69To determine Mr Dart’s earning capacity, I note that in his 20 weeks of employment with the defendant, Mr Dart earned an average of $1,041 gross per week. The maximum sum he earned in a given week was $1,310 gross. Mr Dart submitted that this maximum weekly sum was the figure that most fairly represented his earning capacity. The defendant submitted it was open to me to determine whether I ought to use the average weekly sum or the maximum weekly sum. Given his relative youth and the potential ahead of him, I consider that Mr Dart’s maximum weekly earnings of $1,310 is the fairest figure to adopt in this application. Therefore, to succeed in his application, Mr Dart must satisfy me that he is incapable of earning more than $786 gross per week.
70The defendant submitted that I should be satisfied notwithstanding his back injury, Mr Dart is, or will be capable of performing the following jobs, which attract the following rates of pay:
Occupation
Gross Earnings
Administrative Assistant
$1,073/week
[$28.24/hour][12]
Data Entry Operator
$1,035/week
[$27.23/hour][13]
Customer Service Representative
$1,419/week
[$37.34/hour][14]
OR
$1,306/week
$34.40/hour
Weighbridge Operator
$1,516/week
$39.90/hour
Fleet Controller (Assistant/Supervisor)
$1,376/week
$36.20/hour
[12] Calculation based on 38 hours per week
[13] Calculation based on 38 hours per week
[14] Calculation based on 38 hours per week
71Based on those hour rates of pay, the defendant submits that Mr Dart is or will be capable of working at least the following number of hours per week and, if I am so satisfied, then Mr Dart does not meet the requisite threshold.
Administrative Assistant
28 hours
Data Entry Operator
29 hours
Customer Service Representative
23 hours (based on lower hourly rate)
OR
21hours (based on higher hourly rate)
Weighbridge Operator
20 hours
Fleet Controller (Assistant/Supervisor)
22 hours
72Mr Dart claimed that, as a consequence of his lower back impairment, he has no capacity for work on a permanent basis. I accept Mr Dart’s evidence that his his pain is always present, and is made worse by sitting, standing, bending, twisting and lifting. Further I am satisfied that most days he is required to lay down on his bed for a couple of hours, so as to ease his pain.
73Of the doctors who have offered an opinion as to his work capacity, each of them, save for Dr Thomas, are of the opinion that Mr Dart has no current capacity for employment. For the reasons stated above, I gained little assistance from Dr Thomas’ report.
74In view of the above, I am satisfied that as a consequence of his lower back injury, Mr Dart is incapable to performing any work on a reliable and consistent basis. As stated previously, I accept that Mr Dart’s decision not to have the proposed spinal stimulator surgery is not unreasonable and therefore there is no prospect his earning capacity will improve in the way that some of the doctors hoped. I am therefore satisfied that Mr Dart is incapable of earning more than $786 per week on a permanent basis.
75I am not satisfied that the jobs proposed in the CoWork and Nabenet reports were realistic, given Mr Dart’s limited sitting and standing tolerances. In any event, I am also not satisfied that Mr Dart could work the 20 hours or more per week required in these jobs as suggested by the defendant. That is, even if I am wrong in my acceptance that Mr Dart is incapable of performing any work, and wrong that he could not work in such jobs, , I am satisfied he would be incapable of performing such duties for the requisite number of hours each week on a reliable and consistent basis.
76For those reasons, I am satisfied that Mr Dart’s loss of earning capacity of 40 per cent or more is permanent.
77Once the threshold of 40 per cent reduction in earning capacity has been met, it is still necessary for me to consider whether the consequences for Mr Dart meet the “very considerable” test.[15] Given my acceptance that Mr Dart’s injury prevents him from reliably returning to any form of employment, the pecuniary disadvantage to him is so great that I consider his loss of earning capacity can be described as very considerable.
[15] Section 134AB(38)(c)
78I am therefore satisfied that Mr Dart should be granted leave to commence proceedings for pain and suffering and loss of earning capacity damages.
79I will make the consequent orders.
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